CONDITIONS OF DISCLOSURE TO THIRD PARTIES

B. Twelve Exceptions to the "No Disclosure Without Consent" Rule

1. 5 U.S.C. § 552a(b)(1) ("need to know" within agency)

"to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties."

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This "need to know" exception authorizes theintra-agency disclosure of a record for necessary, official purposes. See OMB Guidelines, 40 Fed. Reg. 28,948, 28,950-01 (1975); 120 Cong. Rec. 36,967 (1974), reprinted in Source Book at 958 (recognizing propriety of "need to know" disclosures between Justice Department components).

Intra-agency disclosures for improper purposes will not be condoned. See, e.g., Parks v. IRS, 618 F.2d 677, 680-81 & n.1 (10th Cir. 1980) (publication of names of employees who did not purchase savings bonds, "for solicitation purposes," held improper); MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 8-9 (M.D. Fla. July 28, 1989) (disclosure of counseling memorandum in "callous attempt to discredit and injure" employee held improper); Koch v. United States, No. 78-273T, slip op. at 1-2 (W.D. Wash. Dec. 30, 1982) (letter of termination posted in agency's entrance hallway held improper); Smigelsky v. United States Postal Serv., No. 79-110-RE, slip op. at 3-4 (D. Or. Oct. 1, 1982) (publication of employees' reasons for taking sick leave held improper); Fitzpatrick v. IRS, 1 Gov't Disclosure Serv. (P-H) ¶ 80,232, at 80,580 (N.D. Ga. Aug. 22, 1980) (disclosure of fact that employee's absence was due to "mental problems" held improper; "quelling rumors and gossip [and] satisfying curiosity is not to be equated with a need to know"), aff'd in part, vacated & remanded in part, on other grounds, 665 F.2d 327 (11th Cir. 1982).

The cases are replete with examples of proper intra-agency "need to know" disclosures. See, e.g., Hudson v. Reno, 130 F.3d 1193, 1206-07 (6th Cir. 1997) (disclosure of plaintiff's performance evaluation to individual who typed it originally, for re-typing), cert. denied, 525 U.S. 822 (1998); Pippinger v. Rubin, 129 F.3d 519, 529-31 (10th Cir. 1997) (disclosure of identity of investigation's subject by supervisor investigating allegations of employee misconduct to staff members to assist in investigation; disclosure to agency attorney charged with defending agency's actions in related MSPB proceeding against another individual); Mount v. United States Postal Serv., 79 F.3d 531, 533-34 (6th Cir. 1996) (disclosure of information in plaintiff's medical records to other employees "with responsibilities for making employment and/or disciplinary decisions regarding plaintiff"; "In light of the questions surrounding plaintiff's mental stability, each had at least an arguable need to access the information in plaintiff's medical records."); Britt v. Naval Investigative Serv., 886 F.2d 544, 549 n.2 (3d Cir. 1989) (disclosure of investigative report to commanding officer approved "since the Reserves might need to reevaluate Britt's access to sensitive information or the level of responsibility he was accorded"); Covert v. Harrington, 876 F.2d 751, 753-54 (9th Cir. 1989) (disclosure of security questionnaires to Inspector General for purpose of detecting fraud); Daly-Murphy v. Winston, 837 F.2d 348, 354-55 (9th Cir. 1988) (disclosure of letter suspending doctor's clinical privileges to participants in peer-review proceeding); Lukos v. IRS, No. 86-1100, 1987 WL 36354, at **1-2 (6th Cir. Feb. 12, 1987) (disclosure of employee's arrest record to supervisor for purpose of evaluating his conduct and to effect discipline); Howard v. Marsh, 785 F.2d 645, 647-49 (8th Cir. 1986) (disclosure of employee's personnel records to agency attorney and personnel specialist for purpose of preparing response to discrimination complaint); Hernandez v. Alexander, 671 F.2d 402, 410 (10th Cir. 1982) (disclosure of employee's EEO files to personnel advisors for purpose of determining whether personnel action should be taken against employee); Grogan v. IRS, 3 Gov't Disclosure Serv. (P-H) ¶ 82,385, at 82,977-78 (4th Cir. Mar. 22, 1982) (disclosure of questionable income tax returns prepared by professional tax preparer while he was IRS employee to IRS examiners for purpose of alerting them to possible irregularities); Beller v. Middendorf, 632 F.2d 788, 798 n.6 (9th Cir. 1980) (disclosure of record revealing serviceman's homosexuality by Naval Investigative Service to commanding officer for purpose of reporting "a ground for discharging someone under his command"); Khalfani v. Secretary, Dep't of Veterans Affairs, No. 94-CV-5720, 1999 WL 138247, at **7-8 (E.D.N.Y. Mar. 10, 1999) (disclosure of plaintiff's medical records within VA so that his supervisor could document his request for medical leave and determine level of work he could perform) (appeal pending); Blazy v. Tenet, 979 F. Supp. 10, 26 (D.D.C. 1997) (disclosure of status of plaintiff's security investigation to his supervisor and disclosure of records needed by members of Employee Review Panel responsible for assessing plaintiff's employment performance and prospects), summary affirmance granted, No. 97-5330, 1998 WL 315583 (D.C. Cir. May 12, 1998); Porter v. United States Postal Serv., No. CV595-30, slip op. at 23-24 (S.D. Ga. July 24, 1997) (disclosure of employee's medical records to supervisory personnel in order to "figure out exactly what level of duty [employee] was fit and able to perform"), aff'd, 166 F.3d 352 (11th Cir. 1998) (unpublished table decision); Jones v. Department of the Air Force, 947 F. Supp. 1507, 1515-16 (D. Colo. 1996) (Air Force investigator's review of plaintiff's medical and mental health records and publication of statements about the records in report of investigation compiled in preparation for plaintiff's court-martial, which was distributed to certain Air Force personnel); Viotti v. United States Air Force, 902 F. Supp. 1331, 1337 (D. Colo. 1995) (disclosure by general to academic department staff that he was removing acting head of department because he had lost confidence in his leadership; subsequent disclosure by new head of department to department staff of same information regarding removal of prior department head), aff'd, 153 F.3d 730 (10th Cir. 1998) (unpublished table decision); Abernethy v. IRS, 909 F. Supp. 1562, 1570-71 (N.D. Ga. 1995) ("[investigatory] panel's review of Plaintiff's performance appraisals was not a violation of the Privacy Act because the members had a need to know the contents of the appraisals"; member of panel that recommended that plaintiff be removed from management in response to EEO informal class complaint "had a need to know the contents of the [EEO] complaint file"), aff'd per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997); Magee v. United States Postal Serv., 903 F. Supp. 1022, 1029 (W.D. La. 1995) (disclosure of employee's medical report following fitness-for-duty examination to Postmaster of Post Office where employee worked to determine whether employee could perform essential functions of job and to Postmaster's supervisor who was to review Postmaster's decision), aff'd, 79 F.3d 1145 (5th Cir. 1996) (unpublished table decision); McNeill v. IRS, No. 93-2204, 1995 U.S. Dist. LEXIS 2372, at *8 (D.D.C. Feb. 7, 1995) (disclosures made to Treasury Department's Equal Employment Opportunity (EEO) personnel in course of their investigation of EEO allegations initiated by plaintiff); Harry v. United States Postal Serv., 867 F. Supp. 1199, 1206 (M.D. Pa. 1994) (disclosure from one internal subdivision of Postal Service to another--the Inspection Service (Inspector General)--which was conducting an investigation); Hass v. United States Air Force, 848 F. Supp. 926, 932 (D. Kan. 1994) (disclosure of mental health evaluation to officers who ultimately made decision to revoke plaintiff's security clearance and discharge her); Lachenmyer v. Frank, No. 88-2414, slip op. at 3-4 (C.D. Ill. July 16, 1990) (disclosure of investigative report, referencing employee's admission that he had been treated for alcohol abuse, to supervisor); Williams v. Reilly, 743 F. Supp. 168, 175 (S.D.N.Y. 1990) (admission of drug use disclosed by the Naval Investigative Service to plaintiff's employer, the Defense Logistics Agency); Bengle v. Reilly, No. 88-587, 1990 U.S. Dist. LEXIS 2006, at *21 (D.D.C. Feb. 28, 1990) (disclosure to personnel consulted by employee's supervisors in order to address employee's complaints); Glass v. United States Dep't of Energy, No. 87-2205, 1988 WL 118408, at *1 (D.D.C. Oct. 29, 1988) (disclosure to "officials or counsel for the agency for use in the exercise of their responsibility for management of the agency or for defense of litigation initiated by plaintiff"); Krowitz v. USDA, 641 F. Supp. 1536, 1545-46 (W.D. Mich. 1986) (details of employee's performance status disclosed to other personnel who were assigned to assist plaintiff), aff'd, 826 F.2d 1063 (6th Cir. 1987) (unpublished table decision); Marcotte v. Secretary of Defense, 618 F. Supp. 756, 763 (D. Kan. 1985) (disclosure of "talking paper" chronicling officer's attempts to correct effectiveness ratings to Inspector General for purpose of responding to officer's challenge to "staff advisories"); Nutter v. VA, No. 84-2392, slip op. at 8-9 (D.D.C. July 9, 1985) (disclosure of record reflecting employee's impending indictment to personnel responsible for responding to public and press inquiries); Brooks v. Grinstead, 3 Gov't Disclosure Serv. (P-H) ¶ 83,054, at 83,551-53 (E.D. Pa. Dec. 12, 1982) (disclosure of employee's security file to supervisor for purpose of ascertaining employee's trustworthiness); Carin v. United States, 1 Gov't Disclosure Serv. (P-H) ¶ 80,193, at 80,492 & n.1 (D.D.C. Aug. 5, 1980) (disclosure of employee's EEO complaint to other employees during grievance process); Lydia R. v. United States Army, No. 78-069, slip op. at 3-6 (D.S.C. Feb. 28, 1979) (disclosure of derogatory information from employee's file to officer for purpose of determining appropriateness of assigning employee to particular position).

Although subsection (b)(1) permits disclosure only to "those officers and employees of the agency which maintains the record," two courts have upheld a disclosure to a contractor who serves the function of an agency employee. See Coakley v. United States Dep't of Transp., No. 93-1420, 1994 U.S. Dist. LEXIS 21402, at **3-4 (D.D.C. Apr. 7, 1994) (holding that EEO investigator who was independent contractor "must be considered an employee of DOT for Privacy Act purposes" and that disclosure of information by former Department employee to contractor, "[g]iven that the disclosure in question occurred in connection with an official agency investigation . . . must be considered an intra-agency communication under the Act"); Hulett v. Department of the Navy, No. TH 85-310-C, slip op. at 3-4 (S.D. Ind. Oct. 26, 1987) (release of medical and personnel records to contractor/psychiatrist for purpose of assisting him in performing "fitness for duty" examination), aff'd, 866 F.2d 432 (7th Cir. 1988) (unpublished table decision). Another court, however, has held to the contrary on facts nearly identical to those in Hulett. Taylor v. Orr, No. 83-0389, 1983 U.S. Dist. LEXIS 20334, at **7-10 (D.D.C. Dec. 5, 1983). See generally OMB Guidelines, 40 Fed. Reg. at 28,954 (noting that "movement of records between personnel of different agencies may in some instances be viewed as intra-agency disclosures if that movement is in connection with an inter-agency support agreement").

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